Separation agreements instead of divorce or dissolution

If you are thinking about getting divorced or dissolving your civil partnership in England, Wales or Northern Ireland, but haven’t yet filed the papers, you can get a separation agreement drawn up. This sets out who will pay the rent or mortgage and bills, until you decide whether to proceed with your divorce or dissolution.

What is a separation agreement?

A separation agreement is useful if you haven’t yet decided whether to divorce or dissolve your civil partnership, or if you can’t yet do so. It’s a written agreement that – typically – sets out the financial arrangements that you’ll put in place while you are separated. It can cover a range of areas:

  • who pays the mortgage or rent, and household bills
  • who continues to live in the family home and/or what happens if it’s sold
  • what happens to any debts, such as loans or overdrafts
  • what happens to savings, investments and other financial assets
  • what happens to any items such as cars or furniture, especially bought jointly
  • whether maintenance is paid to support one of you and/or any children
  • childcare arrangements: who any children live with and parental access

For those couples who are planning to make their separation permanent, the separation agreement would ideally set out the form of a final financial agreement that will be presented to the court when the divorce or dissolution finally goes through.

Pros and cons of a separation agreement

Pros:

  • you agree that you don’t have to live together, so your ex-partner (husband, wife or civil partner) can’t allege that you’ve deserted them and vice versa
  • it shows that you both consider the relationship to have ended and the date it ended
  • it is flexible – you can decide what you’d like to include
  • if you stick to it, an agreement can take the heat out of the breakdown of the relationship and means you both know where you stand
  • it gives you both clarity and certainty
  • whilst not technically legally binding, agreements properly and fairly negotiated will be upheld if challenged

Cons:

  • it’s not easy to enforce
  • it can only be changed if both of you agree to the changes
  • a court may disregard some or all of its contents if you go on to divorce or dissolve your civil partnership – it’s not the final word

Financial disclosure: being open about your money

To help ensure a separation agreement is not challenged, you and your ex-partner must be fully open about your finances. This is called ‘financial disclosure’. That way each of you will know what the other has by way of savings, investments, property and debts, and you can agree what you’re each responsible for paying.

If you’re not open and honest about your finances, it’s likely to mean you can’t rely on the agreement in the future.

You don’t need to take legal advice when you put together a separation agreement, but it’s a really good idea to do so. Why? There are several reasons:

  • because you’re entering into a potentially legally-binding agreement
  • you can get advice about whether there are any reasons why you should not sign the separation agreement, before you go ahead
  • your separation agreement is more likely to be legally binding if you and your ex-partner have provided full financial disclosure and you have both taken independent legal advice from a solicitor

It is especially important to take legal advice from a solicitor if your break-up is acrimonious, if one of you is much wealthier than the other or if your ex-partner is bullying or intimidating and puts you under pressure to sign an agreement.

If you and your ex-partner have already decided and agreed what you would like to include in your separation agreement, you should each ask your own solicitor to check it and draw it up as a legal document. You can’t both use the same solicitor.

When can you use a separation agreement?

You can use a separation agreement if you and your ex-partner are considering getting divorced or dissolving your civil partnership, but haven’t definitely decided to split up.

You can also use a separation agreement if you are not able to divorce or dissolve your civil partnership – perhaps because you have been together for less than one year in England or Wales or for less than two years in Northern Ireland – but want to agree who pays what.

Is a separation agreement legally enforceable?

Separation agreements aren’t – technically – legally enforceable. But if you have both been open and honest about your finances, have taken independent legal advice about the agreement and have taken various safeguards, it could be hard for you to argue in court that you should not have to stick to it.

However, a court wouldn’t allow – for example – one of you to be bound by a term in the separation agreement that said you could never go to court for maintenance or child support.

In rare cases, ‘judicial separation’ or a ‘legal separation’ can be used. The main reasons are because:

  • your religion forbids you from getting divorced or dissolving your civil partnership
  • you want more time and space to work out whether to divorce or dissolve your civil partnership
  • you’ve been married or in a civil partnership for less than one year in England or Wales or for less than two years in Northern Ireland

It’s a much more formal process than drawing up a separation agreement. You have to ask for a ‘legal’ or ‘judicial separation’ by filling in a form and sending it to your local court. This type of separation does not end a marriage – you are simply freed of the obligation of living together. This means you are not free to remarry.

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